Judgments -
Regina v. Secretary of State for the Home Department (Appellant) ex parte Uttley (Respondent)

HOUSE OF LORDS

SESSION 2003-04[2004] UKHL 38on appeal from: [2003] EWCA Civ 1130

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

Regina

v.

Secretary of State for the Home Department (Appellant) ex parte Uttley (Respondent)

JUDGMENT: 22 JULY 2004

REASONS: 30 JULY 2004

The Appellate Committee comprised:

Lord Steyn

Lord Phillips of Worth Matravers

Lord Rodger of Earlsferry

Baroness Hale of Richmond

Lord Carswell

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Regina v. Secretary of State for the Home Department (Appellant) ex parte Uttley (Respondent)

[2004] UKHL 38

LORD STEYN

My Lords,

1. I have read the opinions of my noble and learned friends Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry and Lord Carswell. I agree with those opinions. I would also allow the appeal.

LORD PHILLIPS OF WORTH MATRAVERS

My Lords,

2. Over a period prior to 1983 the respondent Mr Uttley committed a number of sexual offences, including three rapes. My noble and learned friend Lord Rodger of Earlsferry has described these in detail, together with the maximum sentence which, in 1983 could have been imposed for each offence. It suffices to note that rape carried a maximum sentence of life imprisonment.

3. The respondent was not prosecuted for these offences until 1995. He pleaded guilty to some of the offences, was convicted of the others and was sentenced to a total of 12 years imprisonment. The practical consequences of that sentence differed significantly from those that would have followed had the respondent been sentenced to 12 years imprisonment in 1983, which has been treated for the purposes of this case as the date upon which he committed the offences in question. This was because the release regime applicable to prisoners had been changed by the Criminal Justice Act 1991 ('the 1991 Act') which had come into effect on 1 October 1992. I shall describe the post October 1992 regime as 'the new regime' and the regime that applied in 1983 as 'the old regime'.

4. Had the respondent been sentenced to 12 years' imprisonment under the old regime he would, subject to good behaviour have been released on remission after serving two-thirds of his sentence, which would then have expired. That would have been the effect of section 25(1) of the Prison Act 1952 and rule 5 of the Prison Rules 1964 (SI 1964/388), which remained applicable up to the introduction of the 1991 Act. In accordance with the provisions of the 1991 Act the respondent was released on 24 October 2003 after serving two-thirds of his sentence, but he was released on licence, the terms of which will remain in force until he has served three-quarters of his sentence, that is for a year. Those terms place the respondent under supervision and impose certain restrictions on his freedom.

5. While subject to the conditions of the licence the respondent is at risk of recall to serve the balance of his sentence, should he fail to comply with those conditions. Furthermore, should he commit a further imprisonable offence before the 12 year term of his sentence has expired, the court dealing with that offence will be entitled to add all or part of the outstanding period of his 12 year sentence to any new sentence imposed.

6. In December 2002 the respondent made an application for judicial review. The remedy that he sought was a declaration that the provisions of the 1991 Act which would make his release subject to licence were incompatible with article 7 (1) of the European Convention on Human Rights.

7. Article 7 (1) provides:

"No punishment without law

1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed."

8. The respondent's case has never, so far as I can see, been fully formulated. On analysis it necessarily involves the following propositions:

i) The 1991 Act had the effect that the 12 year sentence imposed on the respondent under the new regime was a heavier penalty than a 12 year sentence would have been had it been imposed under the old regime;

ii) From this, it follows that article 7 (1) was infringed;

iii) From this, it follows that the 1991 Act is incompatible with article 7 (1).

9. It appears to have been accepted by all before this case reached Your Lordship's House that, if proposition i) was established, propositions ii) and iii) followed as a matter of course. Thus the sole issue canvassed in the courts below was whether a 12 year sentence imposed under the new regime constituted a heavier penalty than a 12 year sentence imposed under the old regime.

10. As to this issue, the argument before Moses J, who on 8 April 2003 gave judgment on the application for judicial review, appears to have concentrated exclusively on the restrictions imposed by the licence: [2003] EWHC 950 Admin. It was argued that these constituted an additional penalty, imposed during the one year period between release after two-thirds of the sentence had been served and the expiry of the licence after three-quarters of the sentence had been served. Under the old regime the respondent would not have been exposed to these restrictions.

11. Moses J rejected the application for judicial review on the ground that the imposition of the licence restrictions did not constitute a penalty. He concluded that a sentence of 12 years imprisonment under the new regime was no heavier a penalty than a sentence of 12 years imprisonment under the old regime.

12. Before the Court of Appeal the respondent took a further point. Not only did the licence impose restrictions on his freedom, while on licence he was subject to the risk of recall to serve the balance of his sentence. During that period his sentence had not expired but was, in effect, suspended. It followed that the sentence was a heavier penalty than a 12 year sentence under the old regime, which would have expired after service of two-thirds of the term.

13. The Court of Appeal reversed the decision of Moses J: [2003] 1 WLR 2590. They concluded that the changes to the release regime affected by the 1991 Act had the effect that the 12 year sentence imposed on the respondent was a heavier penalty than a 12 year sentence imposed under the old regime would have been. As Longmore LJ put it, at p 2600:

"Any prisoner would regard the penalty of 12 years as harsher after 1992 than before. So, in my view, would the ordinary informed observer"

The court allowed the appeal and granted the respondent the declaration of incompatibility that he sought.

14. Before this House Mr Pannick QC for the Secretary of State argued that the reasoning of the Moses J was correct and that of the Court of Appeal erroneous. He contended that the imposition of the licence conditions was designed to protect the public and to prevent further offending. It followed that the licence conditions did not constitute a "penalty" within the meaning of article 7 (1). He went on to advance two novel points, the latter of which was not even presaged in the Secretary of State's written case. I have found these new arguments conclusive. They render it unnecessary to decide whether a sentence of 12 years imprisonment under the new regime constitutes a heavier penalty than a 12 year sentence under the old regime. I do not propose to attempt to resolve that issue. To do so would be to encroach on issues raised in at least one other appeal that is pending before your Lordship's House.

15. Argument in the lower courts proceeded on the premise that the sentence of 12 years imposed on the respondent was a sentence of the same term of years that would have been imposed on the respondent under the old regime. Before this House Mr Pannick challenged that premise. He drew attention to a Practice Statement, (Crime: Sentencing) [1992] 1 WLR 948, issued by Lord Taylor of Gosforth CJ on the day that the 1991 Act came into force. This provided as follows:

"1. Sections 32 to 40 of the Criminal Justice Act 1991 come into force on 1 October 1992. They make radical changes with regard to sentences.

2. Remission is abolished.

3. Parole will affect only those sentenced to four years' imprisonment and above.

4. Where the sentence of the court is less than four years the Secretary of State will be under a duty to release the prisoner after he has served one half of his sentence. Thus, where the sentence is three years, 18 months will be served. This is significantly longer than would normally have been served before the new provisions came into force. Furthermore, on release the prisoner will in effect be subject to a continuing suspended sentence. If between his release and the end of the period covered by the original sentence, he commits any offence punishable by imprisonment, he will be liable to serve the balance of the original sentence outstanding at the date of the fresh offence.

5. For determinate sentences of four years or longer the Secretary of State will have a continuing but reduced element of discretion on release. Prisoners will be released on licence after serving two thirds of the sentence. Whereas hitherto they became eligible for parole after serving one third of the sentence, they will not now become eligible until they have served half. The 'at risk' provisions following release will be the same for long term as for short term prisoners.

6. It is therefore vital for all sentencers in the Crown Court to realise that sentences on the 'old' scale would under the 'new' Act result in many prisoners actually serving longer in custody than hitherto.

7. It has been an axiomatic principle of sentencing policy until now that the court should decide the appropriate sentence in each case without reference to questions of remission or parole.

8. I have consulted the Lords Justices presiding in the Court of Appeal (Criminal Division) and we have decided that a new approach is essential.

9. Accordingly, from 1 October 1992, it will be necessary, when passing a custodial sentence in the Crown Court, to have regard to the actually period likely to be served, and as far as practicable to the risk of offenders serving substantially longer under the new regime than would have been normal under the old.

10. Existing guideline judgments should be applied with these considerations in mind.

11. I stress however that, having taken the above considerations into account, sentencers must, of course, exercise their individual judgment as to the appropriate sentence to be passed and nothing in this statement is intended to restrict that independence."

16. Mr Pannick submitted that, in accordance with this direction, the respondent's sentence must have been appropriately reduced from the term of years that would have been imposed under the old regime in order to reflect the fact that the conditions of release under the new regime were more onerous. Mr Scrivener QC for the respondent challenged this contention. He submitted that the thrust of the Practice Direction was directed at short term sentences where, under the new regime, defendants would serve 'significantly longer' than under the old regime. It was certainly not aimed at the punitive effect of the licence conditions themselves. In any event it was not possible to adjust the sentence so as precisely to compensate for the new release regime. In support of this last contention Mr Scrivener drew attention to the following passage from the judgment of Lord Taylor of Gosforth CJ in R v Cunningham [1993] 1 WLR 183, 186:

"The Practice Statement does not require an arithmetically precise calculation to be made. Its object was to give general guidance by alerting sentencers to the changed regime of early release and requiring them to have regard to the possible effects of passing sentences after October 1992 of the same length as those they would have passed before. Precise and calculated comparisons are not possible."

17. I am persuaded that it is at least possible that the sentence imposed on the respondent was shorter, in terms of years, than the sentence that would have been imposed on him in 1983. It does not, however, seem to me that it is material to the issue before your Lordships, namely the compatibility of the 1991 Act with article 7 (1), whether or not the trial judge in fact reduced the sentence that he imposed on the respondent in order to reflect the extent to which the release conditions were more onerous under the new regime. The important question is whether it was open to him to do so. If it was necessary for him to do so in order to avoid infringing article 7 (1) and the 1991 Act left him free to do so, it cannot be said that the 1991 Act is incompatible with article 7 (1). At first blush it would seem evident that, by reducing the term of years imposed, it was possible for the trial judge to compensate, or certainly to over compensate, for the more onerous release conditions under the new regime. If so, then that in itself is reason to allow this appeal. Mr Scrivener argued, however, that because release under licence, introduced by the 1991 Act, was a novel constituent of any sentence of imprisonment imposed under the new regime, article 7 (1) was necessarily infringed where such a sentence was imposed in respect of offences committed before October 1992. This brings me to the point that in my opinion is determinative of this appeal.

18. Article 7 (1) prohibits the imposition of a penalty which is heavier than the one that was "applicable" at the time that the offence was committed. No one in the hearings below appears to have focussed on the meaning of the word "applicable". There appears to have been an assumption that this meant "that which would have been applied" and that the sentence that "would have been applied" was one of 12 years imprisonment. I have already stated my conclusion that the latter assumption may have been unfounded. I now turn to consider the meaning of 'applicable' in article 7 (1).

19. This question was recently considered by the Judicial Committee of the Privy Council in Flynn and others v Her Majesty's Advocate [2004] UKPC D1. The issue in that case was whether changes made by Scottish legislation to the release regime applicable in the case of mandatory life sentences infringed article 7 (1). My noble and learned friend Lord Carswell, who was a member of the Committee, will in his speech, which I have had the privilege of reading in draft, describe the difference of opinion as to the meaning of 'applicable' expressed by members of the Committee.

20. Had the Committee had cited to them, as we have had cited to us, the decision of the European Court of Human Rights in Coeme and others v Belgium (22 June 2000) their task might have been made the easier. Ours certainly is, for at para 145 the court said this in relation to article 7:

"The Court must therefore verify that at the time when an accused person performed the act which led to his being prosecuted and convicted there was in force a legal provision which made that punishable, and that the punishment imposed did not exceed the limits fixed by that provision."

21. This passage lends strong support to the opinions as to the meaning of 'applicable' expressed by my noble and learned friends Lord Rodger of Earlsferry and Lord Carswell in Flynn. I am persuaded that those opinions correctly state the law. It follows that article 7 (1) will only be infringed if a sentence is imposed on a defendant which constitutes a heavier penalty than that which could have been imposed on the defendant under the law in force at the time that his offence was committed. I observe, in passing, that if statutory changes are made to the release regime of those serving mandatory life sentences those changes may affect the severity of the sentence that the law requires. That is not this case.

22. The maximum sentence which could be imposed for rape at the time that the respondent committed the rapes for which he was convicted was life imprisonment. That was the 'applicable' penalty for the purposes of article 7 (1). The sentence of 12 years imprisonment imposed on the respondent would seem, manifestly, a less heavy penalty than life imprisonment. Mr Scrivener sought to challenge this conclusion. He submitted that, for the purposes of article 7 (1) a "penalty" was an autonomous concept. He further submitted that the fact that a sentence of imprisonment under the new regime included a new constituent, namely release on licence, it was a heavier penalty than one which could be imposed under the old regime.

23. I accept that, for the purposes of article 7 (1), a penalty is an autonomous concept. I also accept that the addition of a new constituent to a sentence can have the effect of making the sentence a heavier penalty. It may be that had the trial judge imposed on the respondent a sentence of life imprisonment, this would have constituted a heavier penalty than life imprisonment under the old regime. This was not a matter that was explored before your Lordships. The suggestion, however, that a sentence of 12 years imprisonment under the new regime was a heavier penalty than life imprisonment under the old regime would seem manifestly unsound. Before dismissing it, however, it is necessary to consider the effect of the decision of the European Court of Human Rights in Welch v United Kingdom (1995) 20 EHRR 247.

24. On 12 January 1987 the Drug Trafficking Offences Act 1986 came into force in the United Kingdom. This Act, for the first time, gave the court power, when a defendant was convicted of drug trafficking offences, to make, when sentencing him, a confiscation order. A confiscation order required the defendant to pay such sum as the court determined constituted the proceeds of drug trafficking received by the defendant, whether received before or after the 1986 Act came into force. The applicant Welch was convicted in August 1988 of drug trafficking offences committed in 1986. He was given an overall sentence of 22 years imprisonment. In addition the judge imposed a confiscation order pursuant to the 1986 Act in the sum of £66,914 in respect of the proceeds of drug trafficking received before the 1986 Act came into force. In default of payment of this sum he would be liable to serve a further two years imprisonment.

25. The applicant claimed that the imposition of the confiscation order violated article 7 (1) as it could not have been imposed at the time that he committed the offences for which he was convicted. The Court agreed. The Court observed at para 26 that

" the retrospective imposition of the confiscation order is not in dispute in the present case. The order was made following a conviction in respect of drugs offences which had been committed before the 1986 Act came into force. The only question to be determined therefore is whether the order constitutes a penalty within the meaning of Article 7(1), second sentence."

The Court went on to conclude that the confiscation order did constitute a penalty and that, in consequence, article 7 (1) had been infringed.

26. In Welch the United Kingdom did not argue that the sentence of 22 years imprisonment, coupled with the confiscation order, was a less heavy penalty than that which could have been imposed for the offences for which Welch was convicted, namely life imprisonment. Nor does this point appear to have been considered by the Commission or by the Court. The confiscation order was considered in isolation as a discrete penalty.

27. I do not believe that the decision in Welch requires your Lordships' House to consider the conditions of the respondent's licence as a discrete penalty, divorced from his sentence of imprisonment. One cannot properly consider in isolation that part of a sentence of imprisonment which will be spent released on licence. The remission regime is an integral feature of the sentence of imprisonment. When considering how heavy a penalty has been imposed by the sentence it is necessary to consider the overall effect of the sentence. That, indeed, has been the respondent's case throughout.

28. The release of a prisoner on licence, albeit subject to onerous conditions, mitigates rather than augments the severity of the sentence of imprisonment which would otherwise be served. A sentence of 12 years imprisonment, with release on licence after serving two-thirds, is a less heavy penalty than a sentence of 12 years imprisonment, all of which has to be served. The sentence of 12 years imprisonment, with release on licence after serving 8 years, imposed on the respondent under the new regime, was a less heavy penalty than a sentence of 15 years, with unconditional release after ten years, which could have been imposed on him under the old regime, and manifestly less severe than the sentence of life imprisonment which could have been imposed on him under that regime.

29. For these reasons I conclude that there has been no infringement of article 7 (1) and I would allow the appeal.

LORD RODGER OF EARLSFERRY

My Lords,

30. I have had the privilege of reading in draft the speeches of my noble and learned friends, Lord Phillips of Worth Matravers and Lord Carswell. I agree with them and for the reasons they give I too would allow the appeal. Since your Lordships are differing from the Court of Appeal, however, I add some observations of my own on the first argument presented by Mr Pannick QC, which is dispositive of the appeal.

31. Before 1983 the respondent, Mr Uttley, committed a large number of sexual offences: three rapes; six indecent assaults on a woman, contrary to section 14(1) of the Sexual Offences Act 1956; one act of sexual intercourse with a girl under sixteen, contrary to section 6(1) of the same Act; and four acts of gross indecency with a child, contrary to section 1(1) of the Indecency with Children Act 1960. On one occasion he took an indecent photograph or pseudo-photograph of a child, contrary to section 1(1)(a) of the Protection of Children Act 1978 ("the 1978 Act") and on two occasions he distributed a photograph or pseudo-photograph of a child, contrary to section 1(1)(b) of the same Act. Although all the offences are said to have been committed before 1983, both counsel argued the appeal on the basis of the penalties that applied in 1983.

32. The respondent was not caught and tried for the offences until 1995. In October of that year, at the Crown Court at Leeds, the respondent either pleaded guilty to, or was convicted of, counts relating to all of these acts. On 24 October 1995 he was sentenced for the offences. In respect of the three rapes, he was sentenced to 11 years' imprisonment on one count and to two periods of 9 years, concurrently, on the two other counts. On each of the six counts of indecent assault on a woman, he was sentenced to two years' imprisonment, to run concurrently with one another and with the other sentences. On the count of sexual intercourse with a girl under sixteen, he was sentenced to one year's imprisonment, again concurrently with the other sentences. On three of the counts of committing gross indecency with a child, the respondent was sentenced to 18 months' imprisonment, and on the other to 12 months' imprisonment, all to run concurrently with the other sentences. On the count relating to the taking of the indecent photograph or pseudo-photograph of the child, he was sentenced to one year's imprisonment to run concurrently. On one of the two counts relating to distributing such a photograph or pseudo-photograph, he was sentenced to one year's imprisonment to run consecutively, on the other to one year's imprisonment to run concurrently. The overall practical effect was, accordingly, that the respondent was sentenced to a period of 11 years' imprisonment on one of the rapes plus a further one year's imprisonment consecutively in respect of one of the counts of distributing an indecent photograph. This made a total of 12 years' imprisonment. The respondent did not appeal against the sentences.

33. At the time when he committed the acts, they all constituted offences under the various statutory provisions to which I have referred. Similarly, at that time, in terms of the relevant legislation, a court was entitled to impose periods of imprisonment for the offences which exceeded the periods actually imposed by the court for them in 1995. In particular, by reason of section 34(3) of, and para 1(a) of Schedule 2 to, the 1956 Act, the maximum sentence for rape was life imprisonment at the time of the offences. In 1995 rape remained punishable with life imprisonment under the same provisions of the 1956 Act. When the respondent distributed the indecent photograph or pseudo-photograph of the child, under section 6(2) of the 1978 Act the maximum penalty for that offence was a sentence of three years' imprisonment. That remained the position in October 1995.

34. The respondent complains that his rights under article 7(1) of the European Convention on Human Rights have been violated. Article 7 is headed "No punishment without law" and article 7(1) provides:

"No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed."

As I have just explained, the provisions criminalising the offences in question and prescribing the punishments that could be imposed for them did not change in any relevant respect between 1983 and 1995. The only authority for the court's sentence of 11 years' imprisonment for rape was to be found in section 34(3) of, and para 1(a) of Schedule 2 to, the 1956 Act, while the court's only authority for imprisoning him for the offence of taking an indecent photograph or pseudo-photograph was to be found in section 6 of the 1978 Act. The provisions of these two Acts were not only the basis in law for the court imposing the total sentence which it did: they would have allowed the court to impose a heavier sentence. The provisions of the 1956 Act alone would have given the court power, in 1983 as in 1995, to impose any sentence of imprisonment for the rapes up to, and including, life imprisonment. Similarly, section 6(2) of the 1978 Act would have authorised the court to impose a consecutive sentence of up to three years' imprisonment for taking the indecent photograph or pseudo-photograph. None of these provisions prescribes a minimum sentence and the case therefore raises no issue of the kind considered by the Court of Appeal in R v Sullivan [2004] EWCA Crim 1762.